The Constitution in the Courts: Law or Politics?

In contemporary intellectual discussions of American jurisprudence, Michael Perry--the Trismens Professor of Law at Northwestern University and the author of such important books as Morality, Politics, and Law and Love and Power--is a major voice. Engrossed with political life as a moral phenomenon, Perry is an often surprising thinker who resists the shibboleths of the time. He takes faith seriously, for a wonder. And while The Constitution in the Courts criticizes Robert Bork's complaint against the "politicization" of law, Perry frames the argument that law--especially constitutional law--is a kind of politics in a way calculated to bother Bork's liberal critics.

A word of warning: Perry's prose is abstract and labored, academic in the worst sense; reading Perry often seems like taking a long walk through wet clay. For all that, the effort will be rewarding for anyone who cares about the Constitution and its future.

Perry begins with the observation that limited, constitutional government presumes rules which can be changed only with difficulty, if at all; some "originalist" restrictions are inherent in the nature of the thing. In specifically democratic constitutionalism, Perry equates original intent with the thinking of those who represented the people when the rule was enacted, especially as evinced in the text. And, Perry indicates, if original intent is not regarded as authoritative or cannot be determined, the democratic consequence is not to secure the rights of the oppressed, but to subject constitutional interpretation to majority rule.

Nevertheless, in Perry's legal politics, there is ample room for an active judiciary. His principles of interpretation are broadly Kantian, emphasizing the primacy of the original norm, as distinct from the ways in which that "directive" is "specified" in practice. Where the authors of the Constitution were more or less explicit about a specification, Perry argues, we ought to defer, but absent such clear guides, first principles control. While many of the authors of the Fourteenth Amendment thought it compatible with segregated schools, the text does not articulate this view. Rather, it reflects a norm of civic equality that, on Perry's reading, forbids discrimination on the basis of any trait irrelevant to one's "status as a human being," and to which the modern Court has properly appealed.

There is a risk that Perry's method can slide into a kind of judicial open season. Perry is reaching pretty far, for example, when he argues that, despite the references to capital crimes in the Constitution, judges can legitimately include the death penalty among "cruel and unusual punishments" because the framers did not specifically "constitutionalize" it. And Perry allows judges even more space for maneuver because there often is more than one plausible reading of an original norm, just as frequently as there are reasonable disagreements about how to specify a principle in particular contexts.

Moreover, judges differ in how aggressively they think courts ought to act. As Perry notes, minimalism--the conviction that courts ought, wherever possible, to defer to elected officials--is distinct from a belief in the authority of original intent. Judge Bork adheres to both doctrines, according to his lights, but Justice Frankfurter, the personification of minimalism, was anything but an originalist, while where the First Amendment was concerned, Justice Black's activism was rooted in his devotion to the pure text. Still, democratic constitutionalism sets limits to minimalism: it implies a distrust of majorities and the belief that a people sometimes needs to be instruted in first principles. Like most Americans, Perry holds that courts, faults and all, are the best means of protecting democracy's foundations, but he worries that we may rely on them too much. He suggests, in fact, that federal judges serve for terms rather than for life, and even that court decisions be subject to legislative override, "perhaps utopian" notions that express an attitude more than a realistic program.

The practical implications of Perry's exegetics are better illustrated by his discussion of the Fourteenth Amendment, which rests on the observation that the "privileges and immunities" clause, originally intended as a relatively robust mandate for equality, was emaciated by the interpretations of the nineteenth-century Supreme Court. Respecting those mistaken precedents, yet devoted to civic equality, the modern Court has expanded and overused the "due process" and "equal protection" clauses. Perry excuses this tendency because the Court's goal is sanctioned by the "privileges" clause, rightly understood. Yet Perry's own argument shows that constitutionalism differs from nobly aspriring government in its devotion to forms; Perry's philosophic idealism and his constitutionalism are necessarily uneasy allies.

For instance, Perry argues that laws against homosexual sodomy (as opposed to prohibitions on sodomy in general) discriminate impermissibly because they presume the inferiority of homosexuals as human beings. But, however unwise or unjust, laws forbidding homosexual acts do not axiomatically pass judgment on homosexuals as persons; the relationship between personhood, sexual orientation, and sexual conduct is more complicated than that. In its gentle and generous way, Perry's reasoning blurs the line between souls and deeds, a distinction vital to constitutional equality.

Similarly, Perry contends that anti-abortion laws--at least, if extended to pregnancies resulting from rape and incest--can be read as imputing a "lesser humanity" to women because these rules would not have been made "but for the fact that the condition affects only women." Conceding that this is difficult to prove, Perry argues that there is "good reason" to believe that "sex-selective sympathy and indifference" are a necessary condition for much legislation. This assertion seems to rest on Judge Richard Posner's comment that "many" opponents of abortion are moved by "antifeminism," an observation that falls a long way short of Perry's claim. As this suggests, in accommodating judicial activism, Perry risks stretching the category of reasonable disagreement into the shapelessness he set out to avoid.

Still, Perry's argument contains its own corrective, pointing us back to first things, and especially to the meaning of constitutional democracy. And it is Perry's special grace to treat politics with a high dignity it deserves and rarely receives.